effective as of the ______ day of ______________, 20__ (the... Maryland Technology CONVERTIBLE NOTE PURCHASE AGREEMENT

TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
CONVERTIBLE NOTE PURCHASE AGREEMENT
THIS CONVERTIBLE NOTE PURCHASE AGREEMENT (the “Agreement”) is
effective as of the ______ day of ______________, 20__ (the “Effective Date”) by and
between the Maryland Technology Development Corporation, a body politic and
corporate and a public instrumentality of the State of Maryland (“TEDCO”), and
___________________, a [name of state] [corporation, limited liability company, etc.]
(the “Company”).
RECITALS
A.
Under §10-402 of the Economic Development Article of the Maryland
Annotated Code, TEDCO was established to: (1) assist in transferring to the private
sector and commercializing the results and products of scientific research and
development conducted by colleges and universities; and (2) assist in the
commercialization of technology developed in the private sector to create and sustain
businesses throughout the State of Maryland.
B.
TEDCO, through its Technology Commercialization Fund (“TCF”)
Program, makes investments to assist companies that are collaborating with or licensing
technology from Maryland colleges and universities or federal laboratories located in
Maryland, are located in or affiliated with Maryland business technology incubators, or
are receiving mentorship through one of TEDCO’s supported entrepreneur
development programs, including but not limited to the Rural Business Innovation
Initiative (RBI2) program, the ACTiVATE program, or the INNoVATE program, to
develop and commercialize new services and products.
C.
Company has submitted its commercialization plan and any other written
information required by TEDCO (collectively the “Application”, and the objectives
described therein the “Milestones”), attached hereto as Exhibit A and incorporated
herein to the extent that it is consistent herewith. TEDCO approved Company’s
Application, as evidenced by the letter of intent from TEDCO to Company under date
of _____________, 20__.
NOW, THEREFORE in consideration of the mutual promises and covenants
contained in this Agreement, including but not limited to TEDCO’s agreement to invest
in Company and Company’s agreement to issue the Convertible Promissory Note
described in Section 2(a) below (“Note”) to TEDCO, all as provided in this Agreement,
TEDCO and Company agree as follows:
1.
Term. The term of this Agreement shall be from the Effective Date until all of
Company’s obligations under the Agreement have been satisfied, including but
not limited to the reporting provisions of Section 5 (“Termination Date”).
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
2.
Purchase of Note; Disbursement.
a.
Company shall issue, sell and deliver to TEDCO, and subject to the further
terms and conditions hereof, and the continuing availability of funds for
such purpose, as determined by TEDCO in its sole discretion, TEDCO
shall purchase from Company, a Series A Convertible Promissory Note,
substantially in the form set forth in Exhibit B attached hereto, in an
aggregate principal amount of up to _____________ and 00/100 Dollars
($_____________).
b.
An initial payment will be made at Closing and subsequent payments will
be made based upon based upon the successful completion, as determined
by TEDCO in its sole discretion, of the Milestones defined in Exhibit A.
c.
Contemporaneously with the Milestone Reports specified in Section
5(a)(ii)(a) below, the Company may submit requests for the additional
disbursement associated with the completion of the Milestones as listed in
Exhibit A during the Funding Period (as defined in Section 4, below)
using the format and enclosing such documentation as is periodically
specified by TEDCO (a Disbursement Request”), and each such
Disbursement Request shall be filed in the manner periodically specified
by TEDCO. The Company’s final Disbursement Request shall be
submitted no later than 90 days after the end of the Funding Period.
d.
Each Disbursement Request shall include certification of the Company’s
[2:1][1:1][1:2] matching investment of cash or approved in-kind goods or
services (“Company’s Match”). The Company shall submit such
additional documentation of any Disbursement Request or Company’s
Match as TEDCO may reasonably require.
3.
Closing. The closing in connection with this Agreement (the “Closing”) shall
take place on ________________, 20__, (the “Closing Date”) in the offices of
TEDCO located at 5565 Sterrett Place, Suite 214, Columbia, Maryland 21044 or at
some other place and time mutually agreed upon. At the Closing Company shall
deliver the Note to TEDCO and TEDCO will deliver the initial disbursement
under the Note to the Company.
4.
Use of Proceeds. Company shall use the proceeds of the Note only for purposes
set forth in Exhibit A during the period beginning with the Effective Date and
ending on or before twelve (12) months after the Effective Date (the “Funding
Period”).
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
5.
Conditions Precedent to Closing. The obligations of TEDCO to complete the
transaction contemplated by this Agreement are subject to the fulfillment prior to
or at Closing of the following conditions (any of which may, at its sole option, be
waived by TEDCO):
a.
The representations and warranties contained in Paragraph 10 of this
Agreement and any certificate, financial statement or document delivered
to TEDCO in connection with this transaction, including but not limited to
Exhibit A, shall be true and correct when made and shall be true and
correct as of the Closing Date with the same force and effect as if they had
been made on and as of the Closing Date.
b.
The Company shall execute and deliver to TEDCO the Application
Affidavit attached hereto as Exhibit C.
c.
The Company shall execute and deliver to TEDCO the certificate attached
hereto as Exhibit D, dated as of the Closing Date.
d.
The Company shall deliver to TEDCO the certificate attached hereto as
Exhibit E, dated as of the Closing Date.
e.
The Company shall deliver to TEDCO a good standing certificate from the
Maryland Department of Assessments and Taxation dated no more than
30 days prior to the Closing Date.
[f.
[IF COMPANY IS A FOREIGN CORPORATION OR OTHER ENTITY:]
The Company shall deliver to TEDCO a good standing certificate from the
state in which it was formed, dated no more than 30 days prior to the
Closing Date.]
f.[g.] The Company shall deliver to TEDCO a copy of its two (2) most recent
annual financial statements and complete State and federal income and
payroll tax returns.
g.[h.] The Company shall demonstrate to TEDCO that it has, and shall upon
request furnish a copy of, a legally sufficient and binding agreement with
[_____________ University/___________ Federal Lab for the advancement
of the goals contained in the Application] [___________ (“Incubator”) for
tenancy in or affiliation with the Incubator].
or
The Company shall demonstrate to TEDCO that [its principal] [one of its
principals] has satisfactorily completed the ACTiVATE program, and shall
furnish satisfactory written evidence confirming that fact.
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
or
The Company shall demonstrate that it has satisfactorily participated in
TEDCO’s RBI2 Program, and shall furnish satisfactory written evidence
confirming that fact.
h.[i.] The Company, its principals or its senior executive and management staff
shall not have been declared by TEDCO to be in default under any other
agreement with TEDCO.
6.
Records and Reports; Confidentiality.
a. The Company shall submit to TEDCO:
(i) Financial Reports.
(a) Beginning ________________, 20__
st
[one month after end of 1 quarter] for the period beginning on the
Closing Date and ending on _________________, 20__ [end of 1st quarter],
and continuing quarterly thereafter so long as TEDCO holds the Note or
any Securities (as defined in Section 8, below) in the Company, the
Company shall forward its internally prepared financial statement for the
previous quarter (“Quarterly Financial Report”).
(b) The Quarterly Financial Report for the first quarter in
each calendar year shall also include the Company’s complete State and
federal income and payroll tax returns and financial statements for the
previous calendar year. In the event all tax returns are not available to be
filed with the first quarter Financial Report, the tax returns shall be
provided as and when filed, but in no event later than one-hundred and
eighty (180) days after the end of the fiscal year. Such financial statements
shall include a balance sheet and income statement, signed by the
Company’s Chief Executive Officer (“CEO”) and verifying under oath that
such financial statements are true and accurate and fairly present the
financial condition and results of operations of the Company, to the best
of the CEO’s knowledge, information and belief.
(ii) Milestone Reports.
(a) Beginning on or before fifteen (15)
days after the end of each calendar quarter after the Closing Date, but in
no event less than forty-five (45) days after the Closing Date, and
continuing with the achievement of each Milestone listed in Exhibit A, but
in any event, no less than quarterly thereafter until the end of the Funding
Period, a report which shall detail its accomplishments related to the
proposed specific aims in, and its progress against achieving, the
Milestones listed in, Exhibit A (the “Milestone Report”).The format for
each Milestone Report shall be as is periodically specified by TEDCO, and
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
each such Milestone Report shall be filed in the manner periodically
specified by TEDCO. Milestone reports documenting the successful
completion of a Milestone as listed in Exhibit A may include a
Disbursement Request submitted for the Milestone covered by the
Milestone Report.
(b) Within 90 days after the end of the Funding Period, the
Company shall submit to TEDCO a final Milestone Report which shall
detail its accomplishments related to the proposed specific aims of and its
progress against achieving the final Milestones listed in Exhibit A, any
technology and associated intellectual property developed or improved
through Project activities or otherwise (the “Technology”), any licensing
or other commercialization activities pertaining to the Technology, and
current employment data (the “Final Report”).The format for the Final
Report shall be as is periodically specified by TEDCO, and such Final
Report shall be filed in the manner periodically specified by TEDCO, and
shall be accompanied by Company’s final Disbursement Request.
(c) Company shall submit to TEDCO an annual economic
impact report consisting of Company’s complete State and federal income
and payroll tax returns, as and when filed, , but in no event later than onehundred and eighty (180) days after the end of the fiscal year, and
financial statements for the previous calendar year, as well as an employee
census reflecting its current number of full-time equivalent employees
who are Maryland residents (the “Annual Economic Impact Statement”).
The initial Annual Economic Impact Statement shall be due on the first
April 30 after the expected date of last Milestone completion, and
subsequent Annual Economic Impact Statements shall be due on each
April 30 thereafter until either five (5) years after the Funding Period, or
TEDCO shall no longer hold any Notes or Securities (as defined in Section
8, below), whichever shall last occur.
(iii) Such other reports or information which TEDCO may
reasonably request from time to time.
b. TEDCO shall hold Company’s Application, Milestone Reports and
Financial Reports in confidence to the extent reasonably permitted by Title
10, Subtitle 6 of the State Government Article of the Annotated Code of
Maryland. Notwithstanding the aforegoing, TEDCO shall not be
obligated to maintain in confidence any information: 1) which was
already known to TEDCO; or 2) which is or comes into the public domain
through no fault of TEDCO; or 3) which is independently developed by
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
TEDCO; or 4) which comes to TEDCO from a third party which is not in
violation of any obligation of confidentiality to Company or TEDCO.
c. Company may be required to attend up to two (2) status update meetings
per year with a TEDCO portfolio manager.
7.
Inspection of Records. Company shall allow any authorized representative of
TEDCO to inspect and audit, at reasonable times, its financial, business and State
and federal tax records. The Company shall retain such records until three years
after the period during which the company is required to file an Economic
Impact Statement.
8.
Visitation. Company shall allow any authorized representative of TEDCO to
visit and inspect, with reasonable notice and at reasonable times, all property,
offices and production facilities owned, leased or otherwise controlled by
Company.
9.
Conversion to Equity. Upon the occurance of certain conditions as specified in
the Note, the amount due and owing under the Note, as amended, and any other
monies owed TEDCO under this Agreement, as amended, may be exchanged by
TEDCO for securities then outstanding in or proposed to be issued by the
Company (collectively, “Securities”). Concurrent with any such conversion to
equity, the Company and TEDCO shall enter into a termination and release
agreement whereby this Agreement shall be terminated and the Company and
TEDCO shall be released from all obligations hereunder.
10.
TEDCO’s Representations and Warranties.
warrants to the Company that:
11.
TEDCO hereby represents and
a.
Any Securities will be acquired for TEDCO’s own account for
investment, and not with a view to, or for resale in connection with, any
distribution or public offering within the meaning of the Securities Act of
1933 (the “Act”) or Maryland law.
b.
TEDCO understands that regarding any Securities that have not been
registered under the Act by reason of their issuance in a transaction
exempt from the registration and prospectus delivery requirements of the
Act, the Company has no present intention of registering the Securities,
that the Securities must be held by TEDCO indefinitely, and that TEDCO
must therefore bear the economic risk of such an investment indefinitely.
Company’s Representations and Warranties.
and warrants to TEDCO that:
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The Company hereby represents
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
a.
Company is duly organized and in good standing in the State of
_______________ [and is [registered][qualified] as a foreign corporation in
the State of Maryland]. The Company has all requisite power and
authority to own its properties and conduct its business as currently being
conducted and as presently proposed to be conducted. The Company’s
principal place of business is located in the State of Maryland.
b.
Company has all requisite power and authority to execute and deliver this
Agreement, the Note, and all other documents in connection with this
Agreement, and to perform the terms of this Agreement, and has taken all
actions necessary or required on its part for the execution, delivery and
performance of this Agreement and the Note. This Agreement and the
Note are the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, except as enforceability may
be limited by bankruptcy laws and general principles of equity.
c.
Neither this Agreement, the Note, nor the Application or any other
written information provided to TEDCO by the Company in connection
with the Agreement contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein or
herein not misleading.
d.
Neither the Company nor any of its directors, officers, partners or
members, as the case may be, has been charged with or convicted of a
felony or debarred from participating in contracts with the State of
Maryland.
e.
Company has filed all federal, State and local tax returns and reports as
required by law. These returns and reports are true and correct in all
material respects. The Company has paid all taxes, assessments and
governmental charges when due, except those contested in good faith.
The Company has withheld or collected from its employees all required
taxes, and has paid the same to the proper tax receiving officers or
authorized depositories. No deficiency assessment with respect to or
proposed adjustment of the Company’s federal, state, county or local taxes
is pending or, to the best of the Company’s knowledge, threatened. There
is no tax lien (other than for current taxes not yet due and payable),
whether imposed by any Federal, state, county, local taxing authority,
outstanding against the assets, properties or business of the Company.
f.
No third party has claimed or, to the best of the Company’s knowledge
has reason to claim, that any principal of the Company or other person
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
employed by or affiliated with the Company has: (i) violated or, may be
violating any of the terms of his employment, non-competition or nondisclosure agreement with such third party; (ii) disclosed or may be
disclosing or utilized or may be utilizing any trade secret or proprietary
information of such third party; or (iii) interfered or may be interfering in
the employment relationship between such third party and any of its
present or former employees.
g.
Company and its property are in compliance with all federal, state, and
local environmental and health laws.
h.
There is no litigation or other governmental proceeding, including
bankruptcy proceedings, currently pending or, to the best of the
Company’s knowledge threatened, against the Company.
i.
The execution, delivery and performance of this Agreement and/or the
Note does not and will not conflict with or constitute a material default
under any contract, promissory note, mortgage or other instrument.
j.
The Company owns, or has a license for, all patents, copyrights,
trademarks, trade names, service marks, trade secrets and other
intellectual and proprietary property (collectively, “Intellectual Property”)
which are necessary to conduct its business and commercially develop
and market its services or products. Except as has been disclosed to
TEDCO, the Company has no obligation to compensate any party for the
use of any such Intellectual Property and has not granted to any Party any
license, assignment or other right to use such Intellectual Property in any
manner (whether requiring the payment of royalties or not). The
Company owns, or will upon development own, all Intellectual Property
relating to its services or products. Each party that may have or assert
rights in any aspect of the services or products has delivered to the
Company written agreements evidencing assignment to the Company of
all such rights, and all employees of the Company involved with the
services or products have delivered to the Company written agreements
acknowledging and agreeing that all Intellectual Property conceived or
developed by such employees and related in any manner to the services
or products shall be the exclusive property of the Company.
k.
There is no liability or obligation of the Company of any nature, whether
absolute, accrued, contingent, or otherwise, in the amount of $2,500 or
more individually, or $20,000 or more in the aggregate, and the Company
is not signatory to, and is not in any manner a guarantor, endorser,
assumptor or otherwise primarily or secondarily liable for or responsible
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
for the payment of any notes payable or other obligations other than those
set forth in the financial statements submitted in connection with the
Closing.
l.
The company does not control directly or indirectly or have any direct or
indirect equity participation in any corporation, partnership, trust, or
other business association.
m.
Attached as Exhibit F is a true and complete list of [the members of the
company, showing the number of units or each class held by each member
as of the date of this Agreement. Except as contemplated by this
Agreement, the Operating Agreement, or as set forth in Exhibit F, there
are no agreements, written or oral, between the Company and any
member, or to the best of the Company’s knowledge, among any of its
members, relating to the acquisition (including without limitation rights
or first refusal or preemptive rights, disposition, registration under the
Act or voting) of units of the Company.] [the stockholders of the
Company, showing the number of shares of each class held by each
stockholder as of the date of this Agreement. Except as contemplated by
this agreement as set forth in Exhibit F, there are no agreements, written
or oral, between the company and any holder of its capital stock, or to the
best of the Company’s knowledge, among any of its stockholders, relating
to the acquisition (including without limitation rights of first refusal or
preemptive rights), disposition, registration under the Act, or voting of
the capital stock of the company.]
n.
The issuance, sale and delivery of the Note has been duly authorized by
all necessary action on the part of the Company, and the Note when so
issued, sold and delivered against payment therefore in accordance with
the provisions of this Agreement, the shares of [Stock][Units][Membership
Interests] issuable upon conversion of the Note when issued upon such
conversion will be duly and validly issued, fully paid and non-assessable.
o.
No consent, approval, order or authorization of, registration, qualification,
designation, declaration, or filing with, any governmental authority is
required on the part of the Company in connection with the execution and
delivery of this Agreement or the offer to issue, sale or delivery of the
Note except (i) requisite filings with appropriate federal and state
securities authorities, which the Company hereby covenants to make on a
timely basis, and (ii) such filings as shall have been made prior to and
shall be effective on and as of the Closing. Based on the representations
made by purchasers in Section 10 of this Agreement, and the making of
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
such filings, the offer and sale of the Note to TEDCO will be in compliance
with applicable Federal and state securities laws.
12.
Covenants of the Company.
Until the Termination Date, the Company:
a.
shall maintain its corporate or other existence, in good standing, in
____________ and in each other jurisdiction where the failure to so qualify
would have a material effect on the Company’s business or financial
condition.
b.
shall maintain its principal place of business in Maryland until all of its
duties hereunder and under the Note have been fully satisfied.
c.
shall file all federal, State and local tax returns and reports as required by
law. The returns and reports to be filed shall be true and correct in all
material respects. The Company shall pay all taxes, assessments and
governmental charges when due, except those contested in good faith
prior to the date penalties attach thereto. The Company shall withhold or
collect from its employees all required taxes, and shall pay the same to the
proper tax receiving officers or authorized depositories.
d.
shall, in the sole determination of TEDCO, use its best efforts to develop
its business in accordance with the Application,
e.
shall notify TEDCO within 10 days of: (i) any lawsuit or proceedings
before a governmental agency which, if successful, would materially affect
the Company’s financial condition or operations; and (ii) any agreement
by the Company to merge, consolidate, or sell its assets (other than in the
normal course of business) to a third party.
f.
shall not, without prior written consent of TEDCO:
i)
change the nature of its business as described in the Application;
ii)
sell or otherwise transfer all or a material portion of its assets or sell
or otherwise transfer a controlling interest in the Company;
iii)
transfer any interest in its services or products, other than in the
ordinary course of business, provided that the Company may
license another party to manufacture components thereof for the
exclusive benefit of the Company;
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
13.
iv)
license, sell or transfer any of the Intellectual Property, other than
in the ordinary course of business;
v)
enter into any merger or consolidation;
vi)
declare or pay any dividend, or other distribution on its stock, if a
corporation; other than as may be necessary and proper to effect a
tax distribution by a Sub-chapter S corporation;
vii)
permit any issuance or transfer of more than a 50% equity interest
in the Company;
viii)
redeem or repurchase any of its equity interest;
ix)
guarantee, or in any way become liable for, a debt or obligation of
any other party;
x)
make any loan or advance to any officer, shareholder, director,
member, partner, employee, or affiliate of the Company except for
temporary, commercially reasonable advances in the ordinary
course of business;
xi)
prepay any debt or obligation owed to any party other than
TEDCO;
xii)
pledge or grant a security interest in the Intellectual Property;
xiii)
take any action having the effect of diminishing or circumventing
TEDCO’s rights under this Agreement or the Note;
xiv)
materially increase executive compensation; or
xv)
accept any investment, whether equity or debt without offering
TEDCO the opportunity to participate in the investment on a paripassu basis.
Default.
a.
The Company shall be in default under this Agreement upon the
occurrence of any of the following; provided, however, that TEDCO shall
first provide Company with written notice of default and an opportunity
to cure such default within fifteen (15) days after notice, unless such
default is not, in the sole determination of TEDCO, curable:
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
b.
(i)
The Company fails to submit any report to TEDCO due pursuant to
Section 5 or any other provision of this Agreement;
(ii)
The Company fails to make any payment to TEDCO due pursuant
to the Note;
(iii)
The Company relocates its principal place of business to a location
outside of Maryland before the Termination Date;
(iv)
Any representation or warranty under Section 10 of this Agreement
shall not be true;
(v)
The Company fails to perform, comply with or observe any of the
conditions, terms or covenants contained under this Agreement;
(vi)
Any document submitted or to be submitted in connection with
this Agreement and/or the Note contains any untrue statement of
material fact or omits to state a material fact necessary to make the
statements therein not misleading;
(vii)
The Company or any of its directors, officers, partners or members,
as the case may be, are charged with or convicted of a felony;
(vii)
The Company has been declared by TEDCO to be in default under
the Note or any other agreement with TEDCO.
Upon the occurrence of a default, TEDCO may:
(i)
Accelerate amounts due under the Note
(ii)
Require full repayment of any unpaid Principal Amount (as
defined in the Note) and the balance of unpaid and accrued interest
and any other amounts payable under the Note in cash or by
certified check within 15 days of written notice to Company of a
default; and
(iii)
Charge fifteen percent (15%) interest on the unpaid Principal
Amount (as defines in the Note) and the balance of unpaid and
accrued interest and any other amounts payable under the Note to
TEDCO pursuant to this Agreement for the period starting 15 days
after TEDCO’s written notice of default until full payment is made.
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
(iv)
At any time or from time to time proceed to protect and enforce all
rights and remedies available to TEDCO under this Agreement by
suit or by any other appropriate proceedings, whether for specific
performance of any covenant or agreement contained in the
Agreement, or damages permitted under applicable law or
regulations.
c.
All remedies provided for in this Agreement are cumulative and shall be
in addition to any and all other rights and remedies available to TEDCO at
law or in equity. The exercise of any right or remedy by TEDCO shall not
in any way constitute a cure or waiver of any default, nor invalidate any
act done pursuant to any notice of default, nor prejudice TEDCO in the
exercise of those rights.
d.
The failure of TEDCO to insist upon performance of any term of this
Agreement at any time and from time to time shall not be deemed to be a
waiver of any term of this Agreement.
e.
If TEDCO suspends or terminates this Agreement, the rights and remedies
available to TEDCO shall survive such suspension or termination.
f.
The Company shall notify TEDCO of an event of default within 5 days of
its occurrence. The notice shall set forth the nature of the default and the
Company’s proposed action(s) to cure such default.
14.
Indemnification. Company shall indemnify, defend and hold TEDCO, the State
and their employees and agents harmless from and against any loss, damage,
claim or other expense suffered or incurred by them or any of them by reason of
Company’s negligence or failure to perform any of the obligations required
herein (including any reasonable costs, fees, and expenses in connection with
TEDCO’s efforts to collect any monies owed pursuant to, or enforce a provision
of, this Agreement, including costs and fees to collect costs and fees).
15.
Compliance with Applicable Law.
(a)
Company agrees to comply with all applicable federal, state and local law,
including all such laws that prohibit discrimination. Company covenants
that it will not discriminate on the basis of race, color, sex, sexual
orientation, religion or national or ethnic origin in its hiring of contractors,
and shall prohibit its contractors from engaging in such discrimination in
the hiring of subcontractors.
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
(b)
Company certifies and covenants that it shall make a good faith effort to
eliminate illegal drug use and alcohol and drug abuse from its workplace
during the term of this Agreement. Specifically, Company shall: (i)
prohibit the unlawful manufacture, distribution, dispensation, possession,
or use of drugs in its workplace; (ii) prohibit its employees from working
under the influence of alcohol or drugs; (iii) not hire or assign to work on
an activity funded in whole or part with State funds, anyone whom it
knows, or in the exercise of due diligence should know, currently abuses
alcohol or drugs and is not actively engaged in a bona fide rehabilitation
program; (iv) Promptly inform the appropriate law enforcement agency of
every drug related crime that occurs in its workplace if the Company or
any of its employees has observed the violation or otherwise has reliable
information that a violation has occurred; and (v) Notify employees that
drugs and alcohol abuse are banned in the workplace, impose sanctions
on employees who abuse drugs and alcohol in the workplace, and
institute steps to maintain a drug and alcohol free workplace.
16.
Insurance. The Company has, and will maintain insurance covering property
damage and liability sufficient in an amount and type to fully protect its assets,
operations and business.
17.
Entire Agreement and Amendment. This Agreement, and the exhibits,
represent the entire Agreement between TEDCO and Company and supersede
any and all prior understandings or oral or written agreements regarding the
investment by TEDCO in Company. This Agreement may be amended from
time to time only in a writing executed by Company and TEDCO.
18.
Assignment. No right, benefit or advantage inuring to Company under this
Agreement may be assigned, and no burden imposed on Company hereunder
may be delegated, without the prior written approval of TEDCO.
19.
Notices.
follows:
All communications concerning this Agreement shall be addressed as
To TEDCO:
Maryland Technology Development Corporation
5565 Sterrett Place, Suite 214
Columbia, Maryland 21044
ATTN: Vice President, Tech Transfer &
Commercialization
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TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
To COMPANY:
________________________________________
________________________________________
________________________________________
ATTN: _________________________________
20.
Successors and Assigns. This Agreement shall be binding upon the Company
and its successors and assigns, and shall inure to the benefit of TEDCO and its
successors and assigns.
21.
Maryland Law. This Agreement shall be governed by and construed in
accordance with Maryland law. The Company and TEDCO hereby agree and
consent that any lawsuit, action or proceeding arising out of or brought to
enforce the provisions of this Agreement shall be brought in any appropriate
court of the State of Maryland.
22.
Waiver of Right to Jury Trial. NO PARTY SHALL ELECT A TRIAL BY JURY
WITH RESPECT TO ANY MATTER ARISING UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
23.
Severability. The invalidity of any provision of this Agreement shall not affect
the validity of the remaining provisions hereof, except that any invalidity of the
repayment obligations of the Company under this Agreement shall constitute an
Event of Default hereunder.
24.
Press Releases. TEDCO may issue press releases or other promotional materials
describing in general terms the investment by TEDCO and the specific purposes
for which the investment was made.
25.
Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall
constitute one Agreement.
[Signatures on following page]
15
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
IN WITNESS WHEREOF, the Company and TEDCO have caused this
Agreement to be executed, delivered, and witnessed by their duly authorized officers
effective the date first above written.
COMPANY
WITNESS: ________________________
By:
_____________________________
Name: _____________________________
Title: _____________________________
MARYLAND TECHNOLOGY
DEVELOPMENT CORPORATION
WITNESS: ________________________
By:
Approved for Form and Legal Sufficiency:
______________________________________
Ira Schwartz, Esq., TEDCO Counsel
16
_______________________________
Robert A. Rosenbaum
President and Executive Director
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
[THIS PAGE INTENTIONALLY LEFT BLANK]
17
EXHIBIT A
PROJECT DESCRIPTION AND MILESTONES
[INSERT PROJECT SUMMARY, MILESTONES AND ASSOCIATED
INVESTMENT HERE]
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
EXHIBIT B
CONVERTIBLE PROMISSORY NOTE
THIS PROMISSORY NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS. THESE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION
OR RESALE, AND MAY NOT BE MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR AVAILABILITY OF AN EXEMPTION UNDER SUCH ACT.
CONVERTIBLE PROMISSORY NOTE
$___________
______________, 20__
FOR VALUE RECEIVED, the undersigned, ______________________, a ________
[State] ______________ [Form of Business Organization] (the “Company”), promises
unconditionally to pay to the order of the Maryland Technology Development Corporation or
its assigns (“Holder”) the principal amount of ___________________ and 00/100 Dollars
($_______.00) or such lesser amounts as shall equal the total sum disbursed pursuant to Section
2 of the Convertible Note Purchase Agreement (the “Note Purchase Agreement”) entered into by
and between the Company and the Holder of even date herewith (the “Principal Amount”) in
accordance with the following terms:
1.
Interest Rate. Interest shall accrue and be payable on the outstanding Principal
Amount at a fixed rate equal to eight percent (8%) per annum. Interest shall be calculated on the
basis of a year of three hundred sixty (360) days applied to the actual days on which there exists
an unpaid balance under this Note.
2.
Maturity; Principal and Interest Repayment. The unpaid Principal Amount,
together with the balance of unpaid and accrued interest and any other amounts payable
hereunder, shall be due and payable on demand upon the earlier of: (i) five (5) years after the date
of this Note (the “Maturity Date”); (ii) when such amounts are declared due and payable by the
Holder upon or after declining to exercise an option to convert to equity pursuant to the
provisions of Section 9 below; or (iii) upon or after the occurrence of an Event of Default (as
defined below). This Note is issued pursuant to the Note Purchase Agreement.
3.
Repayment Extension. If any payment of principal or interest shall be due on a
Saturday, Sunday or any other day on which banking institutions in or government institutions of
the State of Maryland are required or permitted to be closed, such payment shall be made on the
next succeeding business day and such extension of time shall be included in computing interest
under this Note.
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
4.
Manner and Application of Payments. All payments due hereunder shall be paid
in lawful money of the United States of America at the address of Holder set forth below, or at
such other place as may be designated by Holder in accordance with this Note. Each payment
shall be applied first to the payment of any and all costs, fees and expenses incurred by or
payable to Holder in connection with the collection or enforcement of this Note, second, to the
payment of all accrued and unpaid interest hereunder and finally, to the payment of the unpaid
Principal Amount due hereunder.
5.
Prepayment. This Note may not be prepaid in whole or in part at any time by the
Company without the prior written consent of the Holder.
6.
Events of Default. The occurrence of any one or more of the following events
shall constitute an “Event of Default” under this Note: (a) the failure of the Company to pay any
sum due under this Note or to deliver any securities to be issued under this Note within 10 days
after the date due; (b) the Company shall (i) apply for or consent to the appointment of, or there
shall be a taking of possession by, a receiver, custodian, trustee or liquidator for the Company, or
any of the Company’s property, (ii) become generally unable to pay the Company’s debts as they
become due, (iii) make a general assignment for the benefit of creditors or become insolvent, or
(iv) become the debtor party, voluntarily or involuntarily, to any proceeding under the U.S.
Bankruptcy Code or any similar federal or state statute; (c) a default of any provision of this Note
or the Note Purchase Agreement; (d) a breach of or default of any provision of any other
agreement or document between the Company and Holder; (e) entry of judgments against the
Company for amounts in excess of $100,000.00 or claims against the Company in excess of
$100,000.00 or based upon infringement of intellectual property; or (f) the sale by the Company
or its [shareholders] [members], whether by merger, sale, or transfer of more than fifty percent
(50%) of [its capital stock] [the membership interest of], or sale of all or substantially all of its
assets, other than a transaction with Holder.
7.
Rights and Remedies of Holder Upon Default. Upon the occurrence or existence
of any Event of Default and at any time thereafter during the continuance of the Event of Default,
Holder may declare the entire outstanding Principal Amount, together with all accrued interest
and any other sums due hereunder, to be immediately due and payable without presentment,
demand, protest, or any other notice, all of which the Company expressly waives. Holder may
further charge a default rate of interest of fifteen percent (15%) per annum on the entire
outstanding Principal Amount for the period starting 15 days after written notice of default until
full payment is made. In addition to the foregoing remedies, upon the occurrence or existence of
any Event of Default, Holder may exercise any other right or remedy granted to it or otherwise
permitted to it by law, either by suit in equity or by action at law, or both.
8.
Subordination. The indebtedness evidenced by this Note is expressly
subordinated in right of payment, to the extent and in the manner set forth below, to the prior
payment in full of all of Company’s “Senior Indebtedness” as defined below.
(a)
“Senior Indebtedness” means, unless expressly subordinated to or made on
a parity with the amounts due under this Note, the principal of (and premium, if any), unpaid
interest on, and amounts reimbursed, fees, expenses, costs of enforcement, and other amounts
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
due in connection with, indebtedness of Company, or with respect to which Company is a
guarantor, to banks, commercial finance lenders, insurance companies, leasing or equipment
financing institutions, or other lending institutions regularly engaged in the business of lending
money (excluding venture capital, investment banking, or similar institutions that are primarily
engaged in investments in equity securities) that represents money borrowed, or the purchase or
leasing of equipment in the case of lease or other equipment financing, by the Company, whether
or not secured.
(b)
Subrogation. Subject to the payment in full of all Senior Indebtedness as
of the date of this Note, the Holder shall be subrogated to the rights of the holders of any such
Senior Indebtedness, to the extent of the payments or distributions made to the holders of such
Senior Indebtedness pursuant to the provisions of this Section 8, to receive payments and
distributions of assets of the Company applicable to the Senior Indebtedness.
(c)
No Impairment. Subject only to the rights of a holder of Senior
Indebtedness as provided in this Section 8, nothing in this Section shall impair the obligation of
the Company to pay to the Holder any sum hereunder when due and payable or prevent the
Holder, upon default hereunder, from exercising all rights and remedies otherwise provided
herein or by applicable law.
9.
Conversion.
(a)
In the event that before the Maturity Date the Company: (i) engages in a
subsequent issuance of securities in an aggregate amount of $500,000.00 or more from one or
more investors (a “Subsequent Investor”); or (ii) is acquired by another entity by means of any
transaction or series of related transactions, including any transfer of more than 50% of the
voting power of the Company, reorganization, merger, or consolidation; or (iii) sells or otherwise
transfers all or substantially all of the assets of the Company, then upon the occurrence of any
such event (a “Conversion Event”) a sum equal to the entire outstanding Principal Amount,
together with all accrued interest and any other sums due hereunder may, upon Holder’s request
and in Holder’s sole discretion:
(i)
be exchanged for an equity investment by Holder in the Company
immediately prior to closing the contemplated investment by the
Subsequent Investor or other Conversion Event; any such equity
investment by Holder shall otherwise be at the same price , including
factional shares if applicable, and on the same terms and conditions as the
securities acquired by the Subsequent Investor(s); or
(ii)
accelerate all amounts due under this Note.
(b)
Prompt written notice shall be delivered to the Holder, at the address
reflected in Section 18 of the Note Purchase Agreement, of the receipt by the Company of any
offer in any form, the acceptance of which would constitute or cause the occurrence of any
Conversion Event. Such notice shall include, as applicable, the terms offered by the Subsequent
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
Investor(s) or purchaser(s)/acquirer(s), the conversion price, the principal and accrued interest
outstanding on the Note, and all other pertinent terms and conditions.
(c)
On full conversion or acceleration, the Company shall be released from all
of its obligations and liabilities under this Note and TEDCO shall return the Note to the
Company marked “paid in full”.
10.
Waivers.
(a)
No provision of this Note may be waived, amended, or modified without
the written consent of both the Company and the Holder.
(b)
The Company hereby waives notice of default, presentment or demand for
payment, protest, or notice of nonpayment or dishonor, and all other notices or demands relative
to this Note.
(c)
No failure or delay by Holder to insist upon the strict performance of any
one or more provisions of this Note or to exercise any right, power or remedy consequent upon a
breach thereof or default hereunder shall constitute a waiver thereof or preclude Holder from
exercising any such right, power or remedy, or preclude the Holder from exercising any such
right, power, or remedy in the event of any such breach or default at any later time or times . By
accepting full or partial payment after the due date of any amount of principal of or interest on
this Note, or other amounts payable on demand, Holder shall not be deemed to have waived the
right either to require prompt payment when due and payable of all other amounts of principal of
or interest on this Note or other amounts payable on demand, or to exercise any rights and
remedies available to it in order to collect all such other amounts due and payable under this
Note.
11.
Successors and Assigns. This Note shall be binding upon the Company and its
permitted successors and assigns, and shall inure to the benefit of Holder and its successors and
assigns.
12.
Assignment. No right, benefit or advantage inuring to Company under this Note
may be assigned, and no burden imposed on Company hereunder may be delegated, without the
prior written approval of Holder.
13.
Expenses.
If this Note is placed in the hands of an attorney for collection
following an Event of Default, Company shall pay to Holder upon demand all costs and
expenses, including reasonable attorney’s fees, incurred by Holder in connection with the
enforcement or collection hereof, including costs and fees to collect costs and fees.
14.
Maryland Law. This Note shall be governed by and construed in accordance
with Maryland law. The Company and Holder hereby agree and consent that any lawsuit, action
or proceeding arising out of or brought to enforce the provisions of this Note shall be brought in
any appropriate court of the State of Maryland.
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
15. Waiver of Right to Jury Trial. NO PARTY SHALL ELECT A TRIAL BY JURY
WITH RESPECT TO ANY MATTER ARISING UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
16.
Notice. Any notice to be given hereunder shall be in writing, and shall be
personally delivered, sent by courier, or posted by United States certified mail, postage prepaid,
return receipt requested. Such notices shall be effective when delivered, sent or posted, and shall
be addressed as provided in Section 18 of the Note Purchase Agreement, or to such other
addresses as the parties may designate by like notice.
IN WITNESS WHEREOF, the Company has duly executed this Note under seal as of the
day and year first hereinabove set forth.
WITNESS/ATTEST:
________________________________
By: ___________________________ (SEAL)
Name: _________________________
Title: __________________________
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
EXHIBIT C
APPLICATION AFFIDAVIT
A.
AUTHORIZED REPRESENTATIVE:
I HEREBY AFFIRM THAT I am the _____________
and the duly authorized representative of _______________________, and that I
possess the legal authority to make this Affidavit on behalf of myself and the
business for which I am acting.
B.
CERTIFICATION OF CORPORATION REGISTRATION AND TAX PAYMENT: I FURTHER
AFFIRM THAT:
(1)
The business named above is a [corporation, limited liability company, etc.]
formed in [state] and registered in accordance with the Corporations and
Associations Article, Annotated Code of Maryland, and that it is in good standing
and has filed all of its annual reports, together with filing fees, with the Maryland
State Department of Assessments and Taxation, and that the name and address of
its resident agent filed with the State Department of Assessments and Taxation is:
______________________________________________________________________
(2)
Except as validly contested, the business has paid, or has arranged for
payment of, all taxes due all government entities including the State of Maryland
and has filed all required returns and reports with the Comptroller of the Treasury,
the State Department of Assessments and Taxation, the Department of Labor,
Licensing and Regulation (DLLR) and all other taxing authorities, as applicable,
and will have paid all withholding taxes due to the State of Maryland and all other
government entities prior to final settlement.
C.
AFFIRMATION REGARDING BRIBERY CONVICTIONS:
I FURTHER AFFIRM THAT
neither I, nor to the best of my knowledge, information, and belief, the above
business, (as is defined in §16-101(b) of the State Finance and Procurement Article
of the Annotated Code of Maryland), nor any of its officers, directors, or partners,
nor any of its employees directly involved in obtaining or performing contracts
with the public bodies (as is defined in §16-101(f) of the State Finance and
Procurement Article of the Annotated Code of Maryland), has been convicted of,
or has had probation before judgment imposed pursuant to Article 27, §641 of the
Annotated Code of Maryland, or has pleaded nolo contendere to a charge of,
bribery, attempted bribery, or conspiracy to bribe in violation of Maryland law, or
of the law of any other state or federal law, except as follows [indicate the reasons
why the affirmation cannot be given and list any conviction, plea, or imposition of
probation before judgment with the date, court, official or administrative body, the
sentence or disposition, the name(s) of the person(s) involved, and their current
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
positions and responsibilities with the business]:
_______________________________________________________________________
D.
AFFIRMATION REGARDING OTHER CONVICTIONS:
I FURTHER AFFIRM THAT
neither I, nor to the best of my knowledge, information, and belief, the above
business, nor any of its officers, directors, or partners, nor any of its employees
directly involved in obtaining or performing contracts with public bodies, has:
(a)
been convicted under the state or federal statute of a criminal offense
incident to obtaining, attempting to obtain, or performing a public or private
contract, fraud, embezzlement, theft, forgery, falsification or destruction of records,
or receiving stolen property;
(b)
statute;
been convicted of any criminal violation of a state or federal antitrust
(c)
been convicted under the provisions of Title 18 of the United States
Code for violation of the Racketeer Influenced and Corrupt Organization Act, 18
U.S.C. §§1341, et seq., or Mail Fraud Act, 18 U.S.C. §§1341, et seq., for acts arising
out of the submission of bids or proposals for a public or private contract;
(d)
been convicted of a violation of the State Minority Business
Enterprise Law, Section 14-308 of the State Finance and Procurement Article of the
Annotated Code of Maryland;
(e)
been convicted of conspiracy to commit any act or omission that
would constitute grounds for conviction or liability under any law or statute
described in subsection (a), (b), (c), or (d) above;
(f)
been found civilly liable under a state or federal antitrust statute for
acts or omissions in connection with the submission of bids or proposals for a
public or private contract;
(g)
admitted in writing or under oath, during the course of an official
investigation or other proceeding, acts or omissions that would constitute grounds
for conviction or liability under any law or statute described above, except as
follows [indicate reasons why the affirmations cannot be given, and list any
conviction, plea, or imposition of probation before judgment with the date, court,
official or administrative body, the sentence or disposition, the name(s) of the
person(s) involved and their current positions and responsibilities with the
business, and the status of any debarment]:
_______________________________________________________________________
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
E.
AFFIRMATION REGARDING DEBARMENT: I FURTHER AFFIRM THAT neither I, nor to
the best of my knowledge, information, and belief, the above business, nor any of
its officers, directors, or partners, nor any of its employees directly involved in
obtaining or performing contracts with public bodies, has ever been suspended or
debarred (including being issued a limited denial of participation) by any public
entity, except as follows [list each debarment or suspension providing the date of
the suspension or debarment, the name of the public entity and the status of the
proceedings, the name(s) of the person(s) involved and their current positions and
responsibilities with the business, the grounds for the debarment or suspension,
and the details of each person’s involvement in any activity that formed the
grounds for the debarment or suspension]:
_______________________________________________________________________
F.
AFFIRMATION REGARDING DEBARMENT OF RELATED ENTITIES: I FURTHER AFFIRM
THAT:
(1)
The business was not established to, nor does it operate in a manner
designed to, evade the application of or defeat the purpose of debarment pursuant
to §§16-101, et seq., of the State Finance and Procurement Article of the Annotated
Code of Maryland; and
(2)
The business is not a successor, assignee, subsidiary, or affiliate of a
suspended or debarred business, except as follows [indicate the reasons(s) why the
affirmations cannot be given without qualification]:
_______________________________________________________________________
G.
SUB-CONTRACT AFFIRMATION:
I FURTHER AFFIRM THAT neither I, nor to the
best of my knowledge, information, and belief, the above business, has knowingly
entered into a contract with a public body under which a person debarred or
suspended under Title 16 of the State Finance and Procurement Article of the
Annotated Code of Maryland will provide, directly or indirectly, supplies,
services, architectural services, construction related services, leases of real
property, or construction.
H.
ACKNOWLEDGMENT: I ACKNOWLEDGE THAT this Affidavit is to be furnished to
the Maryland Technology Development Corporation and may be distributed to
units and agents of (1) the State of Maryland; (2) counties or other subdivisions of
the State of Maryland; (3) other states and their subdivisions; and (4) the federal
government. I further acknowledge that this Affidavit is subject to applicable laws
of the United States and the State of Maryland, both criminal and civil, and that
nothing in this Affidavit or any agreement resulting from the submission of this
application shall be construed to supersede, amend, modify, or waive, on behalf of
the State of Maryland, or any unit or agent of the State of Maryland having
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
jurisdiction, the exercise of any statutory right or remedy conferred by the
Constitution and the laws of Maryland with respect to any misrepresentation
made or any violation of the obligations, terms and covenants undertaken by the
above business with respect to (1) this Affidavit, (2) the proposed contract, and (3)
other Affidavits comprising part of the proposed contract.
I DO SOLEMNLY DECLARE AND AFFIRM UNDER THE PENALTIES OF
PERJURY THAT THE CONTENTS OF THIS AFFIDAVIT ARE TRUE AND CORRECT
TO THE BEST OF MY KNOWLEDGE, INFORMATION, AND BELIEF.
Date: _____________________
_______________________________
Name: ________________________
Authorized Representative and Affiant
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
EXHIBIT D
CERTIFICATE OF OFFICER/AUTHORIZED MEMBER/GENERAL PARTNER
I, ______________, am the [President] [Authorized Member][Manager] [General
Partner] of ________________________ (the “Company”) and do hereby certify to the
Maryland Technology Development Corporation (“TEDCO”) that:
1. The representations and warranties contained in the Convertible Note
Purchase Agreement of even date herewith between the Company and
TEDCO (the “Agreement”) and in any other document submitted by the
Company in connection with the Agreement are true and correct as of the
date hereof.
2. The Company has performed and complied with all agreements, obligations,
and conditions contained in the Agreement that are required to be performed
or complied with by it on or before the closing.
3. The Company has provided TEDCO with all information the Company
believes is reasonably necessary to enable TEDCO to make its investment
decision. Neither the Agreement nor any other written certificates,
documents, including the Application and attachments thereto submitted to
TEDCO, and any financial statements delivered to TEDCO in connection with
the investment, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading.
4. The Company has timely filed all tax returns and reports (federal, state and
local) as required by law. These returns and reports are true and correct in all
material respects. The Company has paid all taxes and other assessments due,
except those contested in good faith.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed as of the ______ day of ________________, 20___.
____________________________
[Name, Title]
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
EXHIBIT E
CERTIFICATE OF SECRETARY/AUTHORIZED MEMBER/GENERAL PARTNER
I, _____________, am the [Secretary] [Authorized Member] [General Partner] of
_____________, (the “Company”) and do hereby certify to the Maryland Technology
Development Corporation (“TEDCO”) that:
1.
Attached hereto as Exhibit E-1 is a true and correct copy of the Company’s
[Articles of Incorporation] [Articles of Organization] [Certificate of Limited Partnership]
as in effect on the date hereof.
2.
Attached hereto as Exhibit E-2 is a true and correct copy of the Company’s
[Bylaws] [Operating Agreement] [Limited Partnership Agreement] as amended, in
effect on the date hereof.
3.
Attached hereto as Exhibit E-3 is a true and correct copy of the resolutions duly
adopted by the Company’s Board of Directors (and stockholders if necessary)
authorizing the Company to enter into the Convertible Note Purchase Agreement (the
“Agreement”) and to execute all documents and certificates in connection therewith,
and such resolutions are in full force and effect on the date hereof.
4.
Each person who, as a director, officer, member, manager or partner of the
Company, signed the Agreement or any other document submitted in connection with
the Agreement, was at the respective times of such signing and delivery, and is now,
duly elected or appointed, qualified and acting as such, and the signatures of such
persons on such documents are true and correct.
5.
The following persons are the duly elected, qualified and acting directors,
officers, members, managers, or partners of the Company, who are authorized to
execute, deliver and perform the Agreement and all other documents in connection
with the TEDCO TCF Program investment: [name(s), title(s)]
6.
The address of the Company’s principal place of business is ______________
________________________________.
7.
The name and address of the Company’s resident agent in the State of Maryland
is: ______________________________________.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
executed as of the ______ day of __________________, 20___.
___________________________
[Name, Title]
TEDCO TCF NOTE PURCHASE AGREEMENT- CURRENT AS OF 8/19/13
EXHIBIT F
[INSERT STOCKHOLDER/MEMBER LIST]